VICTORY!! CALIFORNIA HOMEOWNER STOPS A FORECLOSURE USING THE NEW CALIFORNIA HOMEOWNER BILL OF RIGHTS. HIS ATTORNEY CAN COLLECT HIS ATTORNEY FEES FROM THE BANK. BECAUSE SINGH WON THE INJUNCTION–HIS ATTORNEY WILL GET PAID BY THE BANK!! FIND THOSE ATTORNEYS TO HELP YOU IN CALIFORNIA.

I,m looking for some help I,m going through a foreclosure and I dont now where to turn I live in fresno and I whont to fight for my home if you could help me with a phone number that would be great thanks andy

Consumer Rights Defenders can help you pro se homeowners with the litigation work that you will need from A-Z, starting with your complaint and then work through discovery which is the most important part of your case. You should consider having counsel for depositions, court appearances and settlement conferences and in the unlikely event you need a trial. Most cases settle. Affordable help for everyone. State and Federal courts.
818.453.3585 M-F 9-4 PST, ask for Steve or Sara. Drop an email to us if you like to CR.Defenders@yahoo.com.

Decision in New Century TRS Holdings, Inc. Holds That Publication in 2 Newspapers is Insufficient to Grant a Motion for Summary Judgment

Summary

In a 14 page opinion published June 7, 2011, Judge Carey ruled that publication of notice in only two newspapers was insufficient information to grant a motion to dismiss based on adequacy of notice. Judge Carey’s opinion is available here (the “Opinion”).

Background

New Century TRS Holdings, Inc. (the “Debtor”), filed voluntary petitions for bankruptcy on April 2, 2007 and the claims Bar Date was established as August 31, 2007. On July 23, 2007, the claims agent published a notice of the Bar Date in The Wall Street Journal and The Orange County Register. Opinion at *3. On November 22, 2008, the plaintiffs in the adversary proceeding that gave rise to this opinion (the “Whites”) filed a claim. The Trustee for the Debtor objected to the claim on August 13, 2010, and the Whites filed this adversary complaint on November 10, 2010, requesting the Court cancel their mortgage note. After the Court consolidated the adversary proceeding and the claim, the Trustee filed a Motion to Dismiss (1) for lack of subject matter jurisdiction and (2) for asserting claims after the bar date.

Judge Carey’s Opinion

Judge Carey began his discussion of the Motion to Dismiss by examining the subject matter jurisdiction of the Bankruptcy Court. Ultimately determining that because the Debtors “did not, at the time of the bankruptcy filing, and do not now, have any interest in the Note or Mortgage,” the Courts lacks subject matter jurisdiction to order rescission or cancellation of the Mortgage. Opinion at *7. Judge Carey then granted this portion of the Motion to Dismiss.

Judge Carey then turned to the Motion to Dismiss as far as it pertained to the late-filed claims. The Whites argued that they did not receive adequate notice of the bar date, and therefore, their claims should not be barred. The Trustee argued that as the Whites were unknown claimants, publication of the bar date in the two newspapers was sufficient to satisfy the requirements of due process. Opinion at *12-13. Judge Carey cites extensively to Chemetron Corp. v. Jones, 72 F.3d 341 (3d Cir. 1995), in discussing the adequacy of service.

In Chemetron, the debtors published notice in The New York Times, The Wall Street Journal and seven local newspapers, satisfying the Third Circuit that the debtors had met their due process burden. In the instant case, Judge Carey held that the Trustee has not proved that publication in one national newspaper and one local newspaper is sufficient to meet due process requirements. Opinion at *14. He then denied the remainder of the Motion to Dismiss.

A Motion to Dismiss is an extreme remedy, and while courts are willing to grant them, they do so infrequently and only when there is a very strong argument in support of the motion. If there is any doubt, as there was in this case, the court will err on the side of caution and deny the motion, particularly when there are numerous unknown facts

John Bird practices with the law firm Fox Rothschild LLP in Wilmington, Delaware. You can reach John at 302-622-4263, or jbird@foxrothschild.com.
Tags: Bar Date, Delaware Bankruptcy Court, New Century TRS Holdings, Notice, Opinions, Publication, The Honorable Kevin J. Carey

CANCEL THE LOAN??????
Some information the general public may not know about various remedies. Taken primarily from Calif sources, but may apply to your jurisdiction: [Does this sound like your situation?
_______________________
Unilateral rescission on basis of mistake, duress, fraud or undue influence: A contract is subject to unilateral rescission by a party whose consent to the contract (or the consent of another party jointly contracting with the rescinding party) was:

· given by mistake; or

· obtained through duress, fraud or undue influence exercised by or with the connivance of the party against whom rescission is sought or any other party to the contract jointly interested with the party against whom rescission is sought. [Ca Civil | 1689(b)(1); see Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 278, 109 Cal.Rptr.2d 807, 821; Sharabianlou v. Karp, supra, 181 Cal.App.4th at 1145, 105 Cal.Rptr.3d at 310–rescission is appropriate remedy where parties are mutually mistaken as to property’s condition; Schiavon v. Arnaudo Bros. (2000) 84 Cal.App.4th 374, 380, 100 Cal.Rptr.2d 801, 805–deed obtained by use of undue influence may be rescinded; Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1142, 67 Cal.Rptr.2d 543, 551 (disapproved on other grounds in Snukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 757, 775, 98 Cal.Rptr.2d 1, 19, fn. 6)–party ‘induced by fraud or mistake to enter into a contract … may have the contract set aside and seek restitution of those benefits lost to him by the transaction’

Therefore, the wrongful acts of third persons who are not parties to the contract may support an action for rescission if the party against whom the rescission is sought had knowledge of the wrongdoing before parting with consideration for the contract. [Leeper v. Beltrami (1959) 53 Cal.2d 195, 206, 1 Cal.Rptr. 12, 20; see also Jones v. Adams Fin’l Services (1999) 71 Cal.App.4th 831, 836, 84 Cal.Rptr.2d 151, 154-155–Lender participated in fraud where Lender was present when false statements were made to Borrower and Lender not only did nothing to correct false statements but actually helped Borrower sign loan documents; compare Chan v. Lund (2010) 188 Cal.App.4th 1159, 1173-1179, 116 Cal.Rptr.3d 122, 133-139–any duress, undue influence or fraud purportedly applied to plaintiff by his attorney by, among other things, threatening to withdraw if plaintiff did not settle, was legally insufficient for purposes of rescinding settlement agreement (attorney was not a party to settlement or ‘jointly interested’ with any contracting party, and defendants did not ‘connive’ with him in allegedly exerting pressure on plaintiff)]

Under the court’s broad equitable power, rescission may also lie against a contracting party who was entirely innocent of any wrongdoing but simply a ‘conduit’ through whom a third party’s fraud was perpetrated.///////

Homeowner wins: Please everyone read this, results are at the end of the citation…. and if you need some help call Consumer Rights Defenders and ask for Steve or Sara 818.453.3585.
_________________________
To: undisclosed-recipients:;
Sent: Thu, Oct 6, 2011 12:17 pm
Subject: COLORADO HOMEOWNER GETS DEFAULT JUDGMENT AND QUIET TITLE AGAINST ONEWEST

EDITORâ€™S NOTE: In the contest between whether the pretender gets a house for free or the borrower gets the house unencumbered (which is not say for free since they all have money in the deal), this one goes to the homeowner. AND OneWest doesnâ€™t care because they didnâ€™t have aÂ dime in the deal anyway.

DISTRICT COURT, SAGUACHE COUNTY, COLORADO
Court ), Saguache, CO 81149
Homeowner Bruce McDonald wins in Colorado against ONE WEST

Plaintiff:
BRUCE C. McDONALD
v.
Defendants:
ONE WEST BANK and FEDERAL HOME LOAN
MORTGAGE CORPORATION
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Case Number: 2010CV6
Division:3 Courtroom:
ORDER REGARDING ONE WEST BANK F.S.Bâ€™S AND FEDERAL HOME LOAN
MORTGAGE CORPORATIONâ€™S MOTION FOR RELIEF FROM FINAL JUDGMENT
THIS MATTER comes before the Court on One West Bank F.S.B.â€™s and Federal Home
Loan Mortgage Corporationâ€™s Motion for Relief from Final Judgment, filed March 18, 2011, and
orally argued on July 28, 2011. The Plaintiff, Bruce C. McDonald, is represented by Erich
Schwiesow of Lester, Sigmond, Rooney & Schwiesow. Defendants, One West Bank
F.S.B.(â€œOneWestâ€) and Federal Home Loan Mortgage Corporation (â€œFreddie Macâ€), are
represented by Victoria E. Edwards of Akerman Senterfitt LLP. The Court having reviewed the
motion, responses, replies, matters of record, and otherwise being informed makes the following
Order.
PROCEDURAL BACKGROUND
Plaintiff, Bruce McDonald, filed a complaint in this case on March 2, 2010, and amended
the complaint on September 16, 2010. The amended complaint requested this Court to find that
Defendant OneWest did not have standing in case no. 2009CV42 and therefore the C.R.C.P.
Rule 120 Order Authorizing Sale is void; that Defendant OneWest could not and did not convey
good title to Defendant Freddie Mac; that Freddie Mac had notice of this action through the
EFILED Document
CO Saguache County District Court 12th JD
Filing Date: Oct 3 2011 10:46AM MDT
Filing ID: 40144354
Review Clerk: Brandie Taylor
2010CV6 D55 Page 2 of 10
Notice of Lis Pendens filed on March 3, 2010; and, that Plaintiff remains the owner of the
property subject to foreclosure and the foreclosure sale that purported to divest him of title is
void.
Defendant One West Bank was served on October 1, 2010, and Defendant Freddie Mac
was served on September 17, 2010. Neither party filed a responsive pleading to the amended
complaint within the time required by the Colorado Rules of Civil Procedure nor did they appear
in the case.
Plaintiff submitted a Motion for Entry of Default on October 29, 2010, and filed a
Motion for Entry of Default Judgment on November 1, 2010. The basis of Plaintiffâ€™s Motion was
that neither of the Defendants appeared within the required legal time. On November 19, 2010,
the Court entered a default judgment in favor of Plaintiff, quieting the disputed property in the
Plaintiff. The Court also entered default against Defendants on November 26, 2010.
On March, 16, 2011, counsel for the Defendants entered her appearance. And on March
18, 2011, the Defendants filed a motion for relief from judgment.
SUMMARY OF ARGUMENTS
Defendants argue that the default judgment should be vacated. Defendants complain of
the following: (1) Plaintiff alleged he attempted to serve Defendantsâ€™ out-of-state counsel but
failed to disclose that he knew Defendants were represented by local counsel in Colorado in a
federal case; (2) Plaintiff should have in good-faith attempted service on Defendantsâ€™ local
counsel in Colorado before attempting service on their legal representatives in California and
West Virginia; (3) Plaintiff should have warned local counsel that he was seeking a default
judgment; (4) Plaintiff represented to the Court that he made all efforts to serve Defendants; (5)
2010CV6 D55 Page 3 of 10
Plaintiff knew how to serve Defendants in Colorado; (6) Plaintiff engaged in improper litigation
tactics.
Defendants also argue that the default judgment violated Defendantsâ€™ due process rights
and is void as a matter of law. The Defendants point to previous litigation whereby, based on this
Courtâ€™s ruling in a Rule 120 case, the Defendants had a Public Trustee foreclosure on the
disputed property. Essentially, Defendants argue res judicata.
In response, Plaintiff argues that the allegations of bad-faith and misrepresentations are
unfounded, that Colorado law does not require him to warn Defendants of applying for default
judgment when Defendants have not appeared in the case, and that the orders issued by this
Court in a previous Rule 120 action have no preclusive effect on this quiet title action.
FINDINGS OF FACT
The Plaintiff and the Defendants have submitted requests for judicial notice. Both
requests are granted and the Court makes the following findings of fact based on judicial notice
of the relevant documents:
1. On or around May 27, 2003, Plaintiff obtained a loan for $198,000.00 from IndyMac
Bank, F.S.B. (Plâ€™s Ex. 1 A.) The loan was secured by property located at 4434 Rarity
Court, Crestone, Colorado. (Plâ€™s Ex. 1 B.) Defendant OneWest became servicer of the
loan (Plâ€™s Ex. 1. E.; Ex. 2), and in 2009, the Plaintiff defaulted on the loan, with a
remaining balance of $200,912.31. (Plâ€™s Ex. 1. D.)
2. Defendant OneWest filed a Rule 120 Motion for Order Authorizing Sale on
September 11, 2009, in case number 2009CV42. On February 4, 2010, this Court
found, inter alia, that there was a reasonable probability that a default existed as
alleged in the motion and granted an order authorizing sale of the disputed property.
3. On March 3, 2010, Plaintiff filed a complaint in this case, 2010CV6, seeking to void
the order authorizing sale, and on March 8, 2010, Plaintiff filed a notice of lis
pendens. Plaintiff filed an Amended Complaint on September 10, 2010, adding
Federal Home Loan Mortgage Corporation (â€œFreddie Macâ€) as a defendant.
2010CV6 D55 Page 4 of 10
4. On June 29, 2010, Freddie Mac filed a complaint alleging forcible entry and detainer
against Mr. McDonald in case number 2010CV30.
5. On July 22, 2010, Plaintiff also filed a lawsuit in the United States District Court for
the District of Colorado against present Defendant and other unknown defendants.
(Plâ€™s Ex. 1. Fed. Compl.) On December 27, 2010, the case was dismissed for failure
to state a claim (Plâ€™s Ex. 5).
6. On September 17, 2010, this Court held a hearing in case number 2010CV30 to
determine whether the 2010CV30 action would be stayed until the issue of ownership
was resolved in this case, 2010CV6. Freddie Mac was represented by Castle
Meinhold & Stawiarski, LLC, and Mr. McDonald was represented by current counsel
Erich Schwiesow.
7. The Court heard arguments from both parties on whether the 2010CV30 should be
stayed. Mr. Shwiesow did not represent that his client would pursue either a federal
action or a state action. The Court finds that Mr. Shwiesow represented that his client
would pursue and litigate this case, 2010CV6. At that point, it was clear that Freddie
Macâ€™s counsel knew of the 2010CV6 litigation.
8. On September 17, 2010, Plaintiff served the Amended Complaint on Freddie Mac.
9. On September 27, 2010, Plaintiff served the Amended Complaint on OneWest.
10. On November 19, 2010, this Court entered default Judgment in favor of Plaintiff and
against Defendants and on November 26, 2010, this Court entered default in favor of
Plaintiff and against Defendants. Notice of Default was served on Freddie Mac and
OneWest on December 7, 2010, and December 15, 2010, respectively.
11. Defendants did not appear in case no. 2010CV6 until March 18, 2011â€”three months
after Defendants were served with Notice of Default­when Defendants filed a joint
motion for relief from final judggment.
12. On July 28, 2011, this Court heard arguments on Defendantsâ€™ Motion for Relief from
Final Judgment. At the hearing, defense counsel expressly refused to argue excusable
neglect and pressed arguments based on fraud and bad faith. Defense counsel thus
waived their argument for relief of judgment based on excusable neglect.
13. The Defendants have proffered no evidence on why they failed to timely respond to
the complaint.
2010CV6 D55 Page 5 of 10
CONCLUSIONS OF LAW
Defendants ask the Court to vacate the judgment. Pursuant to C.R.C.P. Rule 60, the court
may relieve a party from a final judgment or order for, inter alia, mistake, excusable neglect,
misrepresentation, misconduct of an adverse party, judgment is void, and fraud. â€œTo set aside a
judgment under C.R.C.P. 60(b), the movant bears the burden of establishing by clear and
convincing evidence that the motion should be granted.â€ Goodman Associates, LLC v. WP
Mountain Properties, LLC, 222 P.3d 310, 315 (Colo. 2010) (citing Borer v. Lewis, 91 P.3d 375,
380-81 (Colo. 2004)).
1. Excusable Neglect
Defendants assert, â€œ[they] did not bring their motion under the â€˜excusable neglectâ€™
standard of C.R.C.P. 60(b)(1).1
Defendants assert that Defendantsâ€™ counsel assumed that Plaintiff would pursue either a
federal action or a state action, but not both, and former counselâ€™s failure to notify Defendants of
Rather, they brought the Motion under C.R.C.P. 60(b)(2) for
misconduct of an adverse party.â€ (Def.â€™s Reply, p. 5.) Defendants reinforced their position not to
argue excusable neglect at the hearing by explicitly stating they were not pursuing relief under
the excusable neglect standard. Nevertheless, the Court notes that Defendants have seemingly
argue for relief pursuant to excusable neglect despite their clear and explicit intentions not to do
so. The Court finds and holds that the Defendants have waived their excusable neglect argument
and will not consider it as a basis for relief from judgment. The Court further finds that even if
the Defendants did not waive its excusable neglect argument, there is no excusable neglect.
1 Defendantsâ€™ filings confuse notions of notice in service of process with notice for default judgment. In later filings
the confusion continues and is exacerbated by Defendantsâ€™ raising new arguments not included in their original
motions.
2010CV6 D55 Page 6 of 10
the possibility of the state court action establish a basis for the Court to find excusable neglect.
As to the latter argument, there is no misrepresentation since Plaintiffsâ€™ counsel informed
Defendant Freddie Mac that he intended to pursue 2010CV6 at the hearing in 2010CV30. This
Court has found that Plaintiffâ€™s counsel clearly expressed his intention to pursue 2010CV6 and
did not represent that he would stay 2010CV6, if the federal action was pursued by separate
counsel on behalf of Plaintiff. The whole reason for the hearing was Plaintiffâ€™s request to stay
litigation in 2010CV30 (a forcible entry and detainer action) while ownership was litigated in
this case, 2010CV6.
The Defendants have failed to proffer evidence of excusable neglect for failing to appear
and defend in a timely manner. Defendants argue that Defendant Freddie Macâ€™s previous counsel
assumed that this case, 2010CV6, would not be litigated by Plaintiff and failed to inform Freddie
Mac about the existence of this case. Defendants did not proffer evidence tending to establish
either of those propositions. Nor did the Defendants establish why they failed to litigate after
they were served with process­which occurred after Freddie Macâ€™s previous counsel learrned of
this case. In summary, the arguments pressed by Defendants are directed towards some formal or
informal notice of the action directly to an attorney rather than shedding light on Defendantsâ€™
failure to file a responsive pleading after proper service.
The Court further finds that though the Defendantsâ€™ may have had a meritorious claim,
and some equity may favor the Defendants, the failure to provide evidence of excusable neglect
requires that this Court will not set aside default judgment based on excusable neglect grounds.
Such argument was waived and, in the alternative, Defendants did not meet their burden in
establishing excusable neglect.
2010CV6 D55 Page 7 of 10
2. 60(b)(2) Misrepresentation or Other Misconduct of an Adverse Party
In the Motion for Relief from Judgment, Defendants argue that Plaintiff had a duty to
serve process on Defendantsâ€™ counsel and not on Defendantsâ€™ out-of-state registered agents, that
Plaintiff should have informed the Court that he did not serve Defendantsâ€™ counsel, and failing to
notify Defendants of the state action violated Defendantsâ€™ due process. To support their position,
Defendants cite C.R.C.P. Rule 4, C.R.S. Â§ 13-1-125, Mason-Jares Ltd., v. Peterson, 939 P.2d
522 (Colo. App. 1997), and Matter of Bonfilâ€™s Estate, 543 P.2d 701, 705 (Colo. 1975).
Service of process on corporations is clearly defined by C.R.C.P. 4 and section 13-1-125
C.R.S. (2010). Proper service on a corporation, pursuant to C.R.C.P. 4(e)(4), requires serving
â€œthe registered agent for service as set forth in the most recently filed documents in the records
of the secretary of this state or any other jurisdiction.â€ Section 13-1-125 provides that service
must be made to the registered agent within the State of Colorado if one exists. Here, neither
Defendant maintains an agent for service of process in the State of Colorado. Therefore, serving
process on the Defendantsâ€™ out-of-state registered agents is authorized and proper to apprise the
Defendants to appear and defend in this Court
The holdings in Mason-Jares and Matter of Bonfils simply do not apply to this case.
Mason-Jares held a â€œjudgment was void because service of publication did not satisfy due
process where plaintiff discovered defendantsâ€™ location during publication process.â€ In re C.L.S.,
252 P.3d 556, (Colo. App. 2011) (citing Mason-Jares, 939 P.2d at 524, for the proposition that a
judgment entered in violation of due process is void). The crux of Mason-Jares is that the spirit
of the law requires actual notice must be given, when possible, to an actual party whose rights
are affected by litigation. See id. The need for service by publication ceases to exist if actual
2010CV6 D55 Page 8 of 10
notice is possible through personal service. See Bray v. Germain INV. CO., 98 P.2d 993 (Colo.
1940). Here, personal service was achieved, and therefore, actual notice was achieved and the
due process concerns found in Mason-Jares­actual notice v. construcctive notice­do not exist.
This Court can find no basis in the laaw to extend the holding of Mason-Jares so as to require
personal service on opposing partyâ€™s counsel, simply because the parties are involved in
litigation elsewhere. Nor does Mason-Jares stand for the proposition that parties must be notified
of an application for default judgment when the same parties and attorneys are engaged in other
litigation.
As for Matter of Bonfils, that case distinguished the different effects extrinsic fraud and
intrinsic fraud have upon judgments. Here, there is no basis to assert a fraud claim, especially
where Rule 4 authorizes, and C.R.S. Â§ 13-1-125 does not restrict, service of process on
Defendantsâ€™ out-of-state registered agents. In order for a fraud to exist, among other things, there
must be a misrepresentation. Because this court finds no notice requirement exists, there can be
no misrepresentation. There is no misrepresentation in not doing that which is not required.
Misrepresentation occurs when a party fails to disclose what the party has a duty to disclose.
None of the authorities cited in Defendantsâ€™ Motion give rise nor imply such a duty. Therefore,
there was no misrepresentation to the Court since Plaintiff had no duty, nor reason, to inform the
Court that Defendantsâ€™ counsel was not served.
The Defendantsâ€™ remaining contention is the alleged duty of the Plaintiff to warn the
Defendants of an application for default judgment.2
2 This argument was first raised in oral arguments and again in OneWest Bank FSBâ€™s and Federal Home Loan
Mortgage Corporationâ€™s Supplemental Brief in Support of Motion for Relief from Final Judgment, filed August 9,
2011.
â€œBy rule, notice of an application for default
judgment is only required â€˜if the party against whom judgment by default is sought has appeared
2010CV6 D55 Page 9 of 10
in the action.â€ Goodman Associates, LLC v. WP Mountain Properties LLC, 222 P.3d 310, 323
(Colo. 2010) (citing C.R.C.P. 55(b)). Defendants made no appearance in this action, so notice
was not required.
Nevertheless, Defendants cite California case law for the proposition that Plaintiff had an
ethical duty to warn Defendantâ€™s before applying for default judgment. Though the Court finds
the California case law somewhat persuasive, C.R.C.P. Rule 55(b) is clear. Pursuant to this rule,
â€œ[i]f the party against whom judgment by default is sought has appeared in the action, the party
(or, if appearing by representative, the partyâ€™s representative) shall be served with written notice
of the application for judgment at least three days prior to the hearing on such application.â€
C.R.C.P. Rule 55(b). Clearly, under Colorado law, notice is only given to those parties who have
â€œappearedâ€ in the case and not pursuant to rules of professional conduct.
3. Res Judicata
Defendants further argue that â€œ…the issue of whether defendants had authhority to
foreclose was already decided in the Rule 120 action, and that Order serves as res judicata in this
quiet title action, where plaintiff has improperly attempted to relitigate the issue of title.â€
(Defendantsâ€™ Supplemental Brief, p. 4.) The Court agrees with Plaintiff that res judicata does not
apply to a C.R.C.P.Rule 120 proceeding. The plain language of this rule states in part, â€œNeither
the granting nor the denial of a motion under this Rule shall constitute an appealable order or
judgment. The granting of any such motion shall be without prejudice to the right of any person
aggrieved to seek injunctive or other relief in any court of competent jurisdiction, and the denial
of any such motion shall be without prejudice to any right or remedy of the moving party.â€
C.R.C.P. Rule 120(d).
2010CV6 D55 Page 10 of 10
Defendants cite Golden Cycle Corporation v. Cresson Consolidated Gold Mining and
Milling Company, 497 P.2d 714 (Colo. App. 1972), to support their proposition that a Rule 120
provides res judicata as to matters pled and determined. Golden Cycle applied res judicata to a
default judgment in a â€œforeclosure proceeding.â€ It is unclear from the opinion whether the
â€œforeclosure proceedingâ€ was held pursuant to Rule 120 or Rule 105. Nevertheless, a judgment
issued therein rather than merely an order authorizing sale as is the case in a Rule 120
proceeding, which leads this Court to believe that Golden Cycle applied res judicata to a judicial
foreclosure proceeding and not to a Rule 120 proceeding. (See C.R.C.P. 120(e) (â€œIf no response
has been filed within the time permitted by section (c)…the court shall dispense witth the hearing
and forthwith enter an order authorizing saleâ€). Thus, the Court finds that the Order Authorizing
Sale in case number 2009CV42 is not res judicata as the issues presented in this case.
FOR THE REASONS STATED ABOVE, IT IS THEREFORE ORDERED that One
West Bank F.S.B.â€™s and Federal Home Loan Mortgage Corporationâ€™s Motion for Relief From
Final Judgment be and is hereby DENIED.
DONE AND SIGNED THIS 3rd DAY OF October, 2011.
BY THE COURT
MARTIN A. GONZALES
DISTRICT JUDGE
Martin A. Gonzales
ORIGINAL
SIGNATURE
2011.10.03 10:23:37
-06â€™00’

After the plaintiff, Sima Schwartz, presented her case in chief during the first day of thetrial in this adversary proceeding, upon oral motion of the defendants, HomEq Servicingand Deutsche Bank National Trust Company, as Trustee, I granted judgment on partial findings in favor of the defendants on all counts of the complaint, pursuant to Fed. R.Civ. P. 52(c), made applicable to this proceeding by Fed. R. Bankr. P. 7052. Ms.Schwartz then moved for a new trial as a result of which judgment was vacated on count I of the complaint only.Schwartz v. HomEq Servicing (In re Schwartz),2011 WL1331963 (Bankr. D. Mass. Apr. 7, 2011). In count I, Ms. Schwartz alleges that the May24, 2006 foreclosure sale of her home by Deutsche was invalid because Deutsche didnot own the mortgage on the property at the relevant time.1I reopened the trial so that the defendants could present their case with respect to that count, which they did onJune 1, 2011. Based on the evidence and legal submissions presented by the parties,my findings of fact, conclusions of law and order are set forth below.JurisdictionandStanding Core jurisdiction over this case is conferred upon the bankruptcy court by 28 U.S.C. §157(b)(2)(G) and (O).See Atighi v. DLJMortg. Capital, Inc. (In re Atighi),2011 WL3303454, at *3 (B.A.P. 9th Cir. Jan. 28, 2011). Ms. Schwartz’s standing to seek relief isbased on her property interest in light of the alleged wrongful foreclosure.Brae Asset Fund, L.P. v. Kelly, 223 B.R. 50, 56 (D. Mass. 1998).Legal Fr amework Mass. Gen. Laws ch. 244, § 14 establishes the procedure for a mortgagee to foreclosea mortgage by exercise of the statutory power of sale. The statute provides that prior toa foreclosure sale a notice of the sale must appear weekly for three consecutive weeksin a newspaper either published in or generally circulated in the city or town where theproperty is located. The Massachusetts Supreme Judicial Court has recently clarifiedthat a foreclosing mortgagee must hold the mortgage as of the date that the first noticeof sale is published.U .S. Bank Nat. Ass’n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40(2011). If the party intending to foreclose the mortgage is not the original mortgagee, a typical state of affairs when a mortgage loan is owned by the trustee of a securitizedpool of mortgage loans, then the foreclosing mortgagee must hold a valid assignment of the mortgage prior to publishing the first sale notice.The Defendants’Case It is undisputed that Deutsche was not the original mortgagee of the mortgage on Ms.Schwartz’s home, so it must prove that the mortgage was assigned to it prior to the datewhen the first foreclosure notice was published. As discussed in the memorandum andorder on the plaintiff’s motion for a new trial, while the evidence established that anassignment of the mortgage from Mortgage Electronic Registration Systems, Inc.(“MERS”) to Deutsche was executed on May 23, 2006, the day before the foreclosuresale, this assignment, being well after the notice of foreclosure sale was first published,did not confer on Deutsche the power to foreclose on May 24. The Supreme Judicial Court in Ibanez,however, offered an alternative method for a party to acquire sufficientrights in a mortgage to qualify to foreclose:Where a pool of mortgages is assigned to a securitized trust, the executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder. Ibanez,458 Mass. at 651.With this in mind, the defendants introduced into evidence at trial all of the agreements tracking the transfer of Ms. Schwartz’s mortgage loan from its originator, First NLCFinancial Services, LLC (“First NLC”), to Deutsche, complete with the necessary schedules of the pooled mortgage loans specifically identifying her mortgage as being among those transferred. The defendants argue that these agreements, together withother evidence introduced by them, establish that Deutsche was the holder of the mortgage well in advance of the first publication of the notice of sale. At trial, Ronaldo Reyes, a Deutsche vice president, testified that he had managementresponsibility over the administration of the Morgan Stanley Home Equity Loan Trust2005-4 (the “Trust”) and that Deutsche had always been the trustee of the Trust. Hetestified that in his capacity as vice president he had access to the books and records of the Trust and was qualified to authenticate and testify about the documents admitted into evidence by the defendants. During the course of his testimony, Mr. Reyes authenticated executed copies of each of the agreements discussed below, and demonstrated that Ms. Schwartz’s mortgage loan was included on the mortgage loan schedules attached as exhibits to several of the agreements. Mr. Reyes testified that each was used in the ordinary course of Deutsche’s business as trustee of the Trust. The following documents were admitted into evidence: (i) the mortgage on Ms.Schwartz’s home; (ii) the original promissory note executed by Ms. Schwartz, which Mr.Reyes noted was endorsed in blank by First NLC; (iii) the Amended and RestatedMortgage Loan Purchase Agreement (the “Loan Purchase Agreement”) dated as of September 1, 2005 by and between Morgan Stanley Mortgage Capital, Inc. (“MSMortgage Capital”) and First NLC; (iv) the Assignment and Conveyance Agreementdated September 29, 2005, by and between First NLC and MS Mortgage Capital; (v) theBill of Sale dated November 29, 2005 by and between MS Mortgage Capital andMorgan Stanley ABS Capital I Inc. (“MS ABS Capital”); and (vi) the Pooling andServicing Agreement (the “PSA”) dated as of November 1, 2005 by and among MS ABS Capital, HomEq Servicing Corporation, JPMorgan Chase Bank, National Association, First NLC, LaSalle Bank National Association and Deutsche. Mr. Reyesalso testified regarding a custodial log that was admitted into evidence for the purposeof proving that Ms. Schwartz’s loan documents were in Deutsche’s custody prior to thedate when the first notice of foreclosure sale was published.Findings of Fact2 1. On July 22, 2005, Ms. Schwartz refinanced the mortgage loan on her property at 23Sigel Street, Worcester, Massachusetts, executing a promissory note in the amount of $272,000 payable to First NLC and a mortgage securing her obligation under the notenaming MERS, solely as nominee for First NLC, its successors and assigns, asmortgagee. 2. The mortgage, which was duly recorded at the Worcester District Registry of Deeds,includes the statutory power of sale under Mass. Gen. Laws. ch 183, § 21 which isinvoked by reference to the statute and which permits a mortgagee to foreclose amortgage by public auction sale of the property upon the mortgagor’s default inperformance or breach of any conditions thereof.
3. On May 3, May 10 and May 17, 2006, a notice of foreclosure sale was published inthe Worcester Telegram and Gazette stating that “Deutsche Bank National Trust Company, as Trustee,” the “present holder” of the mortgage, intended to foreclose the mortgage by public sale of Ms. Schwartz’s property on May 24, 2006.
4. On May 23, 2006, LiquendaAllotey, described as a vice president of MERS, executedan Assignment of Mortgage for the purpose of assigning the mortgage from MERS to”Deutsche Bank National Trust Company, as Trustee.” 5. Deutsche, in its capacity as trustee of the Trust, 3conducted the foreclosure sale as scheduled on May 24, 2006, bid in its mortgage debt and purchased the property. 6. In its answer, Deutsche admitted that a foreclosure deed conveying the property toitself was recorded on October 13, 2006. There has been no evidence presented of anysubsequent conveyance of the property and hence I find that Deutsche remains the record owner of the Sigel Street property. 7. As she testified on the first day of trial, Ms. Schwartz continues to reside in the SigelStreet Property. 8. The original promissory note executed by Ms. Schwartz was endorsed in blank by an officer of First NLC. 9. The original mortgagee as identified in the mortgage on Ms. Schwartz’s home wasMERS, as nominee for First NLC, its successors and assigns. 10. In accordance with Section 2 of the Loan Purchase Agreement, First NLC agreed to sell “Mortgage Loans” to MS Mortgage Capital. 11. The Loan Purchase Agreement defines a “Mortgage Loan” as An individual Mortgage Loan which is the subject of this Agreement, each MortgageLoan originally sold and subject to this Agreement being identified on the applicable Mortgage Loan Schedule, which Mortgage Loan includes without limitation theMortgage File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,Condemnation Proceeds, Insurance Proceeds, Servicing Rights and all other rights,benefits, proceeds and obligations arising from or in connection with such Mortgage Loan, excluding replaced or repurchased mortgage loans. 12. On September 29, 2005, by way of the Assignment and Conveyance Agreement,First NLC sold, transferred, assigned, set over and conveyed to MS Mortgage Capital”all right, title and interest of, in and to the Mortgage Loans listed on the Mortgage LoanSchedule attached hereto as Exhibit A.” 13. Ms. Schwartz’s mortgage loan was listed on the exhibit attached to the Assignmentand Conveyance Agreement. 14. First NLC, therefore, transferred all of its right, title and interest in Ms. Schwartz’smortgage loan to MS Mortgage Capital on November 29, 2005. 15. By the Bill of Sale dated November 29, 2005, MS Mortgage Capital, as the “Seller,”transferred to MS ABS Capital “all the Seller’s right, title and interest in and to theMortgage Loans described on Exhibit A attached hereto.” 16. Ms. Schwartz’s mortgage loan was listed on Exhibit A to the Bill of Sale. 17. MS Mortgage Capital, therefore, transferred its entire interest in Ms. Schwartz’s mortgage loan to MS ABS Capital on November 29, 2005. 18. Section 2.01 of the PSA, which was dated November 1, 2005, provides that the MS ABS Capital, as “Depositor,” concurrently with the execution and delivery hereof, hereby sells, transfers, assigns,sets over and otherwise conveys to [Deutsche] for the benefit of the Certificateholders,without recourse, all the right, title and interest of the Depositor in and to the Trust Fund,and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
19. The “Trust Fund” includes all of the mortgage loans listed on an attached mortgage loan schedule. 20. Ms. Schwartz’s mortgage loan was listed on the mortgage loan schedule attached to the PSA. 21. While the PSA provides that the mortgage loans were transferred from MS ABS Capital to Deutsche, “concurrently with the execution and delivery hereof” on November 1, 2005, the Bill of Sale provides that MS ABS Capital did not acquire the mortgage loans until November 29, 2005. The November 2009 PSA indicates, however, that the transaction in which MS ABS Capital would transfer the loans to Deutsch, as trustee of the Trust, would not be consummated until November 29, 2005, which is defined as the”Closing Date.” Therefore, MS ABS Capital transferred Ms. Schwartz’s mortgage loan to Deutsche, as trustee of the Trust, on the Closing Date of November 29, 2005, which is the same date as the Bill of Sale by which MS ABS Capital acquired the loan from MSMortgage Capital. 22. Section 2.01(b) of the PSA provides that if any Mortgage has been recorded in the name of Mortgage Electronic RegistrationSystem, Inc. (“MERS”) or its designee, no Assignment of Mortgage in favor of theTrustee will be required to be prepared or delivered and instead, the applicable Servicer shall take all reasonable actions as are necessary at the expense of the applicable Originator to the extent permitted under the related Purchase Agreement and otherwise at the expense of the Depositor to cause the Trust to be shown as the owner of therelated Mortgage Loan on the records of MERS for the purpose of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. 23. Thus MS ABS Capital did not assign to Deutsche the mortgage on Ms. Schwartz’s home in connection with the transaction through which it transferred Ms. Schwartz’smortgage loan pursuant to the PSA. 24. In the chain of transactions by which Ms. Schwartz’s mortgage loan was sold,initially by First NLC to MS Mortgage Capital, next by MS Mortgage Capital to MS ABSCapital and finally by MS ABS Capital to Deutsche, the seller sold all of its right, title and interest in the mortgage loans being transferred. However, as the mortgage itself was originally in the name of MERS as mortgagee, and not First NLC, First NLC never held legal title to the mortgage and could not have transferred such title to MS MortgageCapital. Consequently, neither MS ABS Capital nor Deutsche, as successors to FirstNLC and MS Mortgage Capital, obtained legal title to the mortgage. This is consistentwith § 2.01 of the PSA quoted above. 25. As of November 29, 2005, the Closing Date defined in the PSA, MERS continued to hold legal title to the mortgage on Ms. Schwartz’s home as nominee for First NLC, itssuccessors and assigns. 26. MERS continued to hold legal tile to the mortgage until May 23, 2006, when it assigned the mortgage to Deutsche. 27. The custodial log establishes that Deutsche received Ms. Schwartz’s mortgage loan documents, including the promissory note and mortgage instrument, on September 15,2005 (presumably in anticipation of the November loan sale), and retained custody of these documents until March 27, 2006, when they were sent to HomEq. The custodiallog indicates that the documents were sent to HomEq for servicing and lists the reason
for the transfer as “foreclosure.” According to the custodial log, the loan documentswere returned to Deutsche on May 24, 2006, the day of the foreclosure sale.
Conclusions of Law In re Marron,2011 WL 2600543, at *5 (Bankr. D. Mass. June 29, 2011), I held that where a loan was secured by a mortgage in the name of MERS, even when the loan itself changed hands several times, MERS remained the mortgagee in its capacity as nominee for the original lender, its successors and assigns.4 As MERS was the mortgagee, it had the authority to assign the mortgage to the foreclosing entity. In this case too, while Ms. Schwartz’s loan passed from hand to hand, MERS remained the mortgagee throughout. While MERS held only bare legal title to the mortgage on behalf of Deutsche, the successor to First NLC, until it assigned the mortgage to Deutsche onMay 23, 2006, only MERS had the authority to foreclose.Having determined that MERS, and not Deutsche, held legal title to the mortgage on Ms. Schwartz’s home mortgage as of May 3, 2006, when the notice of the foreclosure sale of her home was first published, it follows that Deutsche did not have the right to exercise the statutory power of sale and to foreclose the mortgage.See, e.g., Novastar Mortgage, Inc. v. Safran,79 Mass.App.Ct. 1124, 948 N.E.2d 917 (2011) (finding, in apost-foreclosure eviction proceeding, that the foreclosing entity had the burden to proveits title to the property by establishing that the mortgage had been assigned to it byMERS “at the critical stages of the foreclosure process.”). By publishing notice of theforeclosure sale when it was not the mortgagee, Deutsche failed to comply with Mass.Gen. Laws ch. 244, § 14, and thus its foreclosure sale is void.Ibanez,438 Mass. at646-47.5A declaratory judgment to that effect shall enter on count I of the complaint. SO ORDERED.
Footnotes 1. The complaint is unclear as to the relief Ms. Schwartz seeks as a result of theallegedly invalid foreclosure. In addition to the allegation that the defendants did not own the mortgage, Ms. Schwartz alleges that she was damaged by the foreclosure sale,which “was conducted fraudulently, in bad faith” and to her detriment. I previously found that Ms. Schwartz failed to produce any evidence of the defendants’ intent to defraud her. In addition, Ms. Schwartz failed to establish the extent of her damages or that theforeclosure sale was conducted in bad faith. Though Ms. Schwartz does not expressly request a declaratory judgment as to the validity of the foreclosure, based on theallegation of invalidity in the complaint, and the parties’ arguments in the course of trial, I will consider count I of the complaint to be a request for a declaratory judgment that theforeclosure sale was invalid. Back to Reference 2. Any finding of fact which should more properly be considered a conclusion of law,and vice versa, shall be deemed as such.Back toReference
3. The documents pertaining to the foreclosure sale identify Deutsche as “DeutscheBank National Trust Company, as Trustee” without identifying the trust.Back toRefer ence 4. The sophisticated financial minds who wrought the MERS regime sought to simplify the process of repeatedly transferring mortgage loans by obviating the need and expense of recording mortgage assignments with each transfer. No doubt they failed toconsider the possibility of a collapse of the residential real estate market, the ensuingflood of foreclosures and the intervention of state and federal courts. Professor AlexTabarrok of George Mason University has observed “[t]he law of unintended consequences is when a simple system tries to regulate a complex system.” AlexTabarrok,T he Law of Unintended Consequences, Marginal Revolution (Jan. 24, 2008,7:47 am), http://marginalrevolution.com/marginalrevolution/2008/01/the-law-of-unin.html.Back toReference 5. Deutsche presented sufficient evidence to prove that either it or HomEq, its agent,had possessionof both the Schwartz mortgage and promissory note as of May 3, 2011.The note was endorsed in blank, which gave Deutsche the right to enforce the note.The fact that Deutsche had possession of the mortgage, however, is irrelevant to itsstatus as mortgagee. While a promissory note endorsed in blank may be enforced bythe party in possession of the note, this is not the case with a mortgage. “Like a sale of land itself, the assignment of a mortgage is a conveyance of an interest in land thatrequires a writing signed by the grantor.”Ibanez,458 Mass at 649. Deutsche had not received a written assignment of the mortgage from MERS prior to May 3, 2011. Thefact that it had possession of the mortgage instrument did not render Deutsche themortgagee and thus it lacked the power to sell the property.
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Should you intend to file an Adversary complaint or state action, we can assist. 818.453.3585 M-F 10 to 4 PM PDT. Leave message for Steve or Sara.

I think that everyone is missing the #1 problem MERS has in CA.
MERS is a Non-Authorized Agent and cannot legally assign the Promissory Note, making any foreclosure by other than the original lender wrongful, for the following reasons.

1) Under established and binding Ca law, a Nominee can’t assign the Note. Born V. Koop 1962 200 C. A. 2d 519[200 CalApp2d Page 527, 528
2) On most Notes, the term Nominee is not included and MERS never takes ownership, making it unenforceable and unassignable by MERS.
Ott v. Home Savings & Loan Association, 265 F. 2d 643 [647,648
3) Ca Civil Code §2924, et seq. is exhaustive and a Nominee is never included as an acceptable form of “authorized agent” in a judicial or non-judicial foreclosure.

Finally, GOMES V. COUNTRYYWIDE HOME LOANS, INC., 192 Cal.App.4th 1149, IS FLAWED!
a) The Gomes case simply failed to address and apply the established and binding definition of a nominee.
b) The first thing the Deed of Trust does is (i) take away MERS right to payments and (ii) take away the right to enforce the Note.
c) REGARDLESS WHAT A BORROWER AGREES TO, a borrower cannot legally grant MERS the right to assign the note or any of the rights of the note owner.
Source: https://sites.google.com/site/mersfatalflawsincalifornia

DO NOT GIVE UP! THE POWER OF ONE!! CALL YOUR SENATORS-CONGRESSMAN-ATTORNEY GENERALS.DO NOT LOSE THE MOMENTUM!! MA-RI-CT HOMEOWNERS! FIND OUT ABOUT GEORGE BABCOCK RECLAIMING AMERICA ONE YARD AT A TIME. MA.& RI & CT.IF YOUR HOME HAS BEEN FORECLOSED ON CALL US WE WILL MAKE IT RIGHT FOR YOU. WE CAN HELP YOU RIGHT AWAY! NO FAMILY LEFT BEHIND! BUDGET PLANS FOR EVERYONE.WE CAN HELP YOU STAY IN YOUR HOME. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK ………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C. CALL KIM THOMAS OR GEORGE BABCOCK AT 401-724-1904 AND GET RELIEF FROM YOUR PROBLEM!

I have been following the events of my friends battle with her lender. She responded to an UD action. Judge set a hearing date but instead of notifying her in writing, the clerk called her to tell her when the hearing is. The clerk alledgedly said 20th of Dec , my friend heard 28th. She noted down the date and forgot that she needed to receive a written notice. On the 23rd she called the court to confirm the date and time and was told that she was a no show and the judged dismissed the case in favor of the lender. To date she has not received an order of the dismissal and today the sheriff posted notice that she has to v acate by the 2oth of Jan.
I am outraged at the behavior of the clerk and the judge that allowed this to happen.
I am helping her to object to the judges decision citing the extremely prejudicial treatment of a pro se defendant by the court and violating civil rules of procedure. any help would be appreciated

MERS WINS ARGUMENT IN COURT THAT IT DOES NOT TAKE OWNERSHIP OF THE NOTE.

“MERS argues that it does not acquire mortgage loans and is therefore not a mortgage banker ……… because it only holds legal title to members’ mortgages in a nominee capacity and is contractually prohibited from exercising any rights with respect to the mortgages (i.e., foreclosure) without the authorization of the members.
Further, MERS ARGUES THAT IT DOES NOT OWN THE PROMISSORY NOTES secured by the mortgages and has no right to payments made on the notes. ” MERS v. NEBRASKA DEPARTMENT OF BANKING AND FINANCE No. S-04-786

WE CAN HELP!MA.& RI & CT.IF YOUR HOME HAS BEEN FORECLOSED ON CALL US WE WILL MAKE IT RIGHT FOR YOU. WE CAN HELP YOU RIGHT AWAY! NO FAMILY LEFT BEHIND! BUDGET PLANS FOR EVERYONE.WE CAN HELP YOU STAY IN YOUR HOME. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK ………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C. CALL KIM THOMAS OR GEORGE BABCOCK AT 401-274-1905 AND GET RELIEVE FROM YOUR PROBLEM!

WE CAN HELP! NO FAMILY LEFT BEHIND! BUDGET PLANS FOR EVERYONE.WE CAN HELP YOU STAY IN YOUR HOME. POSSIBLY GET PRINCIPAL REDUCTION AND IN SOME CASES INTEREST RATE DEDUCTIONS. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK ………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C OR YOU HAVE A MORTGAGE WITH INDYMAC OR ONE WEST BANK CALL KIM THOMAS OR GEORGE BABCOCK AT 401-274-1905 AND GET RELIEVE FROM YOUR PROBLEM!

I have a big problem my attorney did not show up to my hearing & the Judge granted summary final judgment i was wonder if anyone could help me finding so case law regards this type of issue i spent a few days looking for case laws regards to my issue and no luck on finding any…

I would need case law regarding rule 1.540 setting aside void judgment (especially summary judgment) when the ATTORNEY FAILS TO APPEAR AT THE HEARING…

if anyone help or could please give me some leads or case laws would be greatly appreciated…

Rhode Island & Mass. Attorneys get it! We will help you with your case.Initial free consultation and budget plans for everyone. We will help you stay in your home.
Call the Christian Law Firm of George E.Babcock Law offices and ask for Kim Thomas or George Babcock at
401-274-1905 or 401-352-5609.

Okay, come on California attorneys…you don’t want to represent the homeowner because they have no money?

How about this… I have a case, not yet in foreclosure, but about to file BK. I have proof of Notary fraud, what pool my mortgage went to (that is no longer reporting), that Wells Fargo is now taking over my loan to modify it because they never transferred the Note or Deed of Trust to the pool, the original lender was not licensed to lend in California, it went to a pool before we even closed escrow and more… It’s enough to shut Wells Fargo out completely.

How about we pay YOU $1,500/month for 10 years instead of Wells Fargo if you win?

I thinks that’s a bit more than a bank can pay you not to fight for us.

Before the court is defendant PNC Bank National Association’s (“PNC”) motions to dismiss and expunge lis pendens filed on January 29, 2010 (Doc. ##5, 6[1]) to which the other defendants have joined (Doc. #9). Plaintiff Bart E. Haley (“Haley”) filed an opposition and request for leave to amend on February 16, 2010. Doc. #11. Thereafter, PNC filed a reply on February 26, 2010. Doc. #14.

II. Legal Standard
In considering “a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). However, a court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in a plaintiff’s complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

There is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). However, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels, conclusions, and a formulaic recitation of the elements of the cause of action. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (internal citations omitted).

III. Discussion
Wrongful Foreclosure
An action for wrongful foreclosure requires that, at the time of the foreclosure sale, the plaintiff was not in breach of the mortgage contract. Collins v. Union Federal Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983). Here, Haley was in default on his mortgage obligations so there can be no sustainable action for wrongful foreclosure. See Doc. #1, Exhibit 1.

Furthermore, a claim for wrongful foreclosure does not arise until the power of sale is exercised. Collins, 662 P.2d at 623. Haley filed his complaint before the property was sold. As such, his claim for wrongful foreclosure is premature and not actionable.

Fraud
“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” FED. R. CIV. P. 9(b). In order meet the heightened pleading requirements a plaintiff must specify the time, place, and content of the misrepresentation as well as the names of the parties involved. See Yourish v. Cal. Amplifier, 191 F.3d 983, 993 n.10 (9th Cir. 1999); see also, Parnes v. Gateway 2000, 122 F.3d 539, 549-50 (8th Cir. 1997) (requiring a plaintiff to allege the requisite who, what, where, when, and how of the misrepresentation). Here, Haley fails to allege anything more than defendants made misrepresentations to him. These allegations are insufficient to support a claim for fraudulent misrepresentation.

In his opposition, Haley argues that where facts are peculiarly within the defendant’s knowledge, fraud may be alleged in general terms. See Rocker v. KPMG LLP, 148 P.3d 703, 709 (Nev. 2006) (overruled on other grounds Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d 670 (Nev. 2008)). However, the information here was not solely within defendants’ knowledge. Haley was present when the alleged misrepresentations were made and documents signed. Despite his personal knowledge of the events, he has failed to allege the requisite specificity under Rule 9(b).

Good Faith and Fair Dealing
a. Contractual Breach
Under Nevada law, “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and execution.” A.C. Shaw Constr. v. Washoe County, 784 P.2d 9, 9 (Nev. 1989) (quoting Restatement (Second) of Contracts § 205). To establish a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must show that: (1) the plaintiff and defendant were parties to a contract; (2) the defendant owed a duty of good faith and fair dealing to the plaintiff; (3) the defendant breached his duty by performing in a manner unfaithful to the purpose of the contract; and (4) the plaintiff’s justified expectations were denied. See Perry v. Jordan, 134 P.3d 698, 702 (Nev. 2006) (citing Hilton Hotels Corp. v. Butch Lewis Prod. Inc., 808 P.2d 919, 922-23 (Nev. 1991).

Here, Haley alleges that defendants breached the implied covenant because they misrepresented the cost of credit involved in the loan agreement. However, these alleged misrepresentations occurred before a contract was formed. See Doc. #1, Exhibit 1. A party cannot breach the covenant of good faith and fair dealing before a contract is formed. See Indep. Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 941 (2d Cir. 1998) (“an implied covenant relates only to the performance of obligations under an extant contract, and not to any pre-contract conduct”). Haley fails to allege facts to establish that a breach occurred after the contract between the parties was formed. Because Haley’s claim revolves entirely around alleged promises and misrepresentations made before the contract was entered into, it fails as a matter of law.

b. Tortious Breach
Haley also alleges that defendants breached their duty of good faith and fair dealing as fiduciary’s in their dealings with him. Generally, a lender does not owe a borrower a fiduciary duty. See Yerington Ford, Inc. v. General Motors Acceptance Corp., 359 F.Supp.2d 1075, 1092 (D. Nev. 2004). Haley has failed to allege sufficient facts to establish that defendants acted as anything other than arms length lenders which does not, in itself, create a fiduciary relationship.

Absent a duty, there can be no breach. See A.C. Shaw Constr. v. Washoe County, 784 P.2d 9, 10 (Nev. 1989). Accordingly, Haley’s claim for breach of a fiduciary duty fails to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6).

Racketeering
In Nevada, civil racketeering claims brought under NRS 207.400, et seq., must be plead with specificity. Hale v. Burkhardt, 764 P.2d 866, 869 (Nev. 1988). That is, the complaint must allege at least two predicate crimes related to racketeering in order to sufficiently plead a racketeering claim upon which relief can be granted. Id.

Here, Haley merely alleges that his loan was one of many executed in violation of the Nevada state laws. From Haley’s complaint, it is unclear what these violations were and, more importantly, what the two requisite “crimes” were. The court finds that Haley has failed to sufficiently plead a claim for civil racketeering upon which relief can be granted.

Quiet Title
Under Nevada law, a quiet title action may be brought by someone who claims an adverse interest in property. NRS 40.010. No defendant is claiming an interest in the property that is adverse to Haley. Therefore, Haley has no grounds to quiet title against the named defendants.

Unjust Enrichment
To set forth a claim for unjust enrichment, a plaintiff must allege that a defendant unjustly retained money or property of another against fundamental principles of equity. See Asphalt Prods. Corp. v. All Star Ready Mix, 898 P.2d 699, 700 (Nev. 1995). However, an action for unjust enrichment cannot stand when there is an express written contract which guides that activities of the parties. LeasePartners Corp. v. Robert L. Brooks Trust Dated Nov. 12, 1975, 942 P.2d 182, 187 (Nev. 1997).

Here, there was a written contract between the parties, namely, the deed of trust and mortgage note. These documents guided the interactions, obligations, and rights of the parties. As such, Haley cannot make a claim in equity for actions that are guided by contract he is a party to. See LeasePartners Corp., 942 P.2d at 187-88.

Declaratory Relief and Permanent Injunction
Haley’s remaining causes of action for declaratory relief and a permanent injunction are remedies that may be afforded to a party after he has sufficiently established and proven his claims. Here, all of Haley’s other claims fail to establish a claim for relief. Accordingly, Haley is not entitled to his requested remedies.

Request to Amend
In opposition to PNC’s motion to dismiss, Haley requests leave to amend his complaint to correct any deficiencies. However, other than briefly asking for leave to amend, Haley has not established how any proposed amended pleading would address and fix the issues raised by PNC’s motion. In particular, Haley has failed to state how he could satisfy the heightened pleading standard for his fraud claims; he has not alleged, or stated he could allege, whom he allegedly spoke to, what fraudulent statements he was told, and when he was told them.

In light of Haley’s failure to provide the court with any indicia that amendment would not result in dismissal, the court declines to exercise its discretion and shall deny Haley’s request to amend. See United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (courts may refuse to grant leave to amend if the amendment would be futile). Additionally, the court notes that Haley’s request is procedurally improper. Pursuant to Local Rule 15-1(a), a party requesting leave to amend a pleading shall attached the proposed pleading to the request to amend. Haley did not attach a proposed amended pleading with his opposition. Accordingly, his request is procedurally defective.

IT IS THEREFORE ORDERED that defendant’ motion to dismiss (Doc. #5) is GRANTED. The complaint is DISMISSED as to all defendants.

IT IS FURTHER ORDERED that defendant’s motion to expunge lis pendens (Doc. #6) is GRANTED. Defendant PNC Bank National Association shall file an appropriate order with the court expunging the lis pendens and submit the same for signature.

IT IS FURTHER ORDERED that the clerk of court shall enter judgment appropriately.

Mortgage Electronic Registration System, Inc. (”MERS”) appeals a decision of the Benton County Circuit Court denying its motion to set aside a decree of foreclosure and to dismiss the foreclosure action. 1 MERS alleges that the circuit court erred in ordering foreclosure because as the holder of legal title it was a necessary party that was never served. We affirm the circuit court and hold that under the recorded deed of trust in this case, James C. East, as trustee under the deed of trust, held legal title. Because MERS was at most the mere agent of the lender Pulaski Mortgage Company, Inc., it held no property interest and was not a necessary party. As this case presents an issue of first impression, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(1).

1 Mortgage Electronic Registration System, Inc.’s (”MERS”) motion was [*2] entitled Motion to Set Aside Default Judgment; however, the circuit court found, and the parties agree, that MERS was never served. Because MERS was never served, it could not have failed to respond to that service and suffer a default judgment. The relief sought was that the decree of foreclosure be set aside and the foreclosure action be dismissed.

This case arises from foreclosure on a 2006 mortgage granted in a one-acre lot. A prior deed of trust also encumbered the property. In 2003, Jason Paul Lindsey and Julie Ann Lindsey entered into a deed of trust on a one-acre lot in Benton County to secure a promissory note. The lender on that deed of trust was Pulaski Mortgage, the trustee was James C. East, and the borrowers were the Lindseys. MERS was listed on the deed of trust as the “Beneficiary” acting “solely as nominee for Lender,” and “Lender’s successors and assigns.” The second page of the deed of trust states that “the Borrower understands and agrees that MERS holds only legal title to the interests granted by the Borrower and further that MERS as nominee of the Lender has the right to exercise all rights of the Lender including foreclosure.” The deed of trust was recorded.

In [*3] 2006, the Lindseys granted the subject mortgage on the same property to Southwest Homes of Arkansas, Inc. to secure a second promissory note. This mortgage was recorded. On February 9, 2007, Southwest Homes filed a Petition for Foreclosure in Rem against the Lindseys under the 2006 mortgage. The Lindseys, the Benton County Tax Collector, and “Mortgage Electronic Registration System, Inc. (Pulaski Mortgage Company)” were listed as respondents. Pulaski Mortgage was served; however, MERS was never served. Pulaski Mortgage did not file an answer. 2 A Decree of Foreclosure in Rem was entered on April 4, 2007, and the property was auctioned to Southwest. An Order Approving and Confirming Commissioner’s Sale was entered on May 8, 2007. In February 2008, MERS learned of the foreclosure and moved for relief, arguing it was a necessary party to the foreclosure action. The circuit court denied the motion, and this appeal followed.

2 Pulaski Mortgage was the lender of record. No assignment of the deed of trust was recorded nor had Pulaski Mortgage’s security interest been satisfied of record.

MERS asserts that it held legal title to the property and, therefore, it was a necessary party to any action [*4] regarding title to the property. The deed of trust indicates that MERS holds legal title and is the beneficiary, as well as the nominee of the lender. It further purports by contractual agreement with the borrower to grant MERS the power to “exercise any and all rights” of the lender, including the right of foreclosure. However the deed of trust provides that all payments are to be made to the lender, that the lender makes decisions on late payments, and that all rights to foreclosure are held by the lender.

No payments on the underlying debt were ever made to MERS. MERS did not service the loan in any way. It did not oversee payments, delinquency of payments, or administration of the loan in any way. Instead, MERS asserts to be a corporation providing electronic tracking of ownership interests in residential real property security instruments. See In re MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 861 N.E.2d 81, 828 N.Y.S.2d 266 (2006). According to MERS, it was developed by the “real estate finance industry” and was designed to facilitate the sale and resale of instruments in “the secondary mortgage market, which include one of the government sponsored entities.”

MERS contracts with lenders to track security [*5] instruments in return for an annual fee. MERSCORP, supra. Those who contract with MERS are referred to by MERS as “MERS members.” According to MERS, MERS members contractually agree to appoint MERS as their common agent for all security instruments registered with MERS. 3 MERS asserts that it holds the authority to exercise the rights of the lender, and for that purpose, it holds bare legal title. Thus, it is alleged that a principal-agent relationship existed between MERS and Pulaski Mortgage under the contract terms of the deed of trust. 4

3 The Kansas Court of Appeals, in Lankmark National Bank v. Kesler, 40 Kan. App. 2d 325, 192 P.3d 177 (2008), likewise found that Mortgage Electronic Registration System, Inc. acts as an agent. We note the analysis in this case is consistent with our own but also note that the Kansas Supreme Court granted review of the Landmark case.

4 MERS is listed as a nominee on the deed of trust. A nominee is “a person designated to act on behalf of another, usu. in a very limited way.” Black’s Law Dictionary 1076 (8th ed. 2004). A nominee is also a “person who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit [*6] of others.” Id. As discussed above, MERS was not designated to act on behalf of another under the facts of this case. Further, it held no title in this case where title vested in the trustee, and finally, it received and distributed no funds for the benefit of others.

“An agent is a person who, by agreement with another called the principal, acts for the principal and is subject to his control.” Taylor v. Gill, 326 Ark. 1040, 1044, 934 S.W.2d 919, 922 (1996) (quoting AMI 3d 701 (1989)). Thus, MERS, by the terms of the deed of trust, and its own stated purposes, was the lender’s agent, including not only Pulaski Mortgage but also any successors and assigns.

MERS asserts authority to act, arguing that once it becomes the agent on a security instrument, it remains so for every MERS member lender who acquires ownership. This authority is alleged to arise from the contractual relationship between MERS and MERS members. Thus, MERS argues it may act to preserve the rights of the lender regardless of who the lender may be under the MERS electronic registration. We specifically reject the notion that MERS may act on its own, independent of the direction of the specific lender who holds the repayment [*7] interest in the security instrument at the time MERS purports to act. “[A]n agent is authorized to do, and to do only, what it is reasonable for him to infer that the principal desires him to do in the light of the principal’s manifestation and the facts as he knows or should know them at the time he acts.” Hot Stuff, Inc. v. Kinko’s Graphic Corp., 50 Ark. App. 56, 59, 901 S.W.2d 854, 856 (1995) (citing Restatement (Second) of Agency § 33 (1958)). Nothing in the record shows that MERS had authority to act. Here, Pulaski Mortgage was the lender and MERS’s principal. Pulaski Mortgage was a named party in the foreclosure action. Thus, MERS was not acting as the lender’s agent at the time it moved to set aside the decree of foreclosure.

However, MERS also argues that it holds a property interest through holding legal title. Specifically, it purports to hold legal title with respect to the rights conveyed by the borrower to the lender. We disagree.

“A deed of trust is ‘a deed conveying title to real property to a trustee as security until the grantor repays a loan.’” First United Bank v. Phase II, Edgewater Addition, 347 Ark. 879, 894, 69 S.W.3d 33, 44 (2001)(quoting Black’s Law Dictionary [*8] 773 (7th ed. 1999)); see also House v. Long, 244 Ark. 718, 426 S.W.2d 814 (1968). The encumbrance created by the deed of trust may be described as a lien. See, e.g., First Amer. Nat’l Bank of Nashville v. Booth, 270 Ark. 702, 606 S.W. 2d 70 (1980).

Under a deed of trust, the borrower conveys legal title in the property by a deed of trust to the trustee. Phase II, supra. “In this state, the naked legal title to real property included in a mortgage passes to the mortgagee, or to the trustee in a deed of trust, to make the security available for the payment of the debt.” Harris v. Collins, 202 Ark. 445, 447, 150 S.W.2d 749, 750 (1941). The trustee is limited in use of the title to passing title back to the grantor/borrower in the case of payment, or to the lender in the event of foreclosure. See Forman v. Holloway, 122 Ark. 341,183 S.W. 763 (1916). The lender holds the indebtedness and is the beneficiary of the deed of trust. House, supra. A trustee under a deed of trust is not a true trustee. Heritage Oaks Partners v. First Amer. Title, Ins. Co., 155 Cal. App. 4th 339, 66 Cal. Rptr.3d 510 (Cal. Ct. App. 2007). Under a deed of trust, the trustee’s duties are limited to (1) upon default undertaking foreclosure [*9] and (2) upon satisfaction of the debt to reconvey the deed of trust. Id.

In the present case, all the required parties to a deed of trust under Arkansas law are present, the borrower in the Lindseys, the Lender in Pulaski Mortgage, and the trustee in James C. East. Under a deed of trust in Arkansas, title is conveyed to the trustee. Harris, supra. MERS is not the trustee. Here, the deed of trust renamed James C. East as the trustee. The deed of trust did not convey title to MERS. Further, MERS is not the beneficiary, even though it is so designated in the deed of trust. Pulaski Mortgage, as the lender on the deed of trust, was the beneficiary. It receives the payments on the debt.

The cases cited by MERS only confirm that MERS could not obtain legal title under the deed of trust. MERS relies on Hannah v. Carrington, 18 Ark. 85 (1856); however, that case stands for the proposition that a deed of trust vests legal tide in the trustee. We are also cited to Shinn v. Kitchens, 208 Ark. 321, 326, 186 S.W.2d 168, 171 (1945), where this court stated that “[t]he trustee named in the deeds of trust was a necessary party at the institution of the foreclosure suit, as also, of course, was Kitchens, [*10] the holder of the indebtedness.” East, as trustee, was a necessary party. MERS was not. Finally, we are cited to Beloate v. New England Securities Co., 165 Ark. 571, 575,265 S.W. 83 (1924), where this court stated that the real owner of the debt, as well as the trustee in the mortgage, are necessary parties in the action to recover the debt and foreclose the mortgage. Again, this case supports the conclusion that East was a necessary party and MERS was not.

Further, under Arkansas foreclosure law, a deed of trust is defined as “a deed conveying real property in trust to secure the performance of an obligation of the grantor or any other person named in the deed to a beneficiary and conferring upon the trustee a power of sale for breach of an obligation of the grantor contained in the deed of trust.” Ark. Code Ann. § 18-50-101(2) (Repl. 2003). Thus, under the statutes, and under the common law noted above, a deed of trust grants to the trustee the powers MERS purports to hold. Those powers were held by East as trustee. Those powers were not conveyed to MERS.

MERS holds no authority to act as an agent and holds no property interest in the mortgaged land. It is not a necessary party. In [*11] this dispute over foreclosure on the subject real property under the mortgage and the deed of trust, complete relief may be granted whether or not MERS is a party. MERS has no interest to protect. It simply was not a necessary party. See Ark. R. Civ. P. 19(a). MERS’s role in this transaction casts no light on the contractual issues on appeal in this case. See, e.g., Wilmans v. Sears, Roebuck & Co., 355 Ark. 668, 144 S.W.3d 245 (2004).

Finally, we note that Arkansas is a recording state. Notice of transactions in real property is provided by recording. See Ark. Code Ann. § 14-15-404 (Supp. 2007). Southwest is entitled to rely upon what is filed of record. In the present case, MERS was at best the agent of the lender. The only recorded document provides notice that Pulaski Mortgage is the lender and, therefore, MERS’s principal. MERS asserts Pulaski Mortgage is not its principal. Yet no other lender recorded its interest as an assignee of Pulaski Mortgage. Permitting an agent such as MERS purports to be to step in and act without a recorded lender directing its action would wreak havoc on notice in this state.

Affirmed.

IMBER, DANIELSON and WILLS, JJ., concur.

CONCUR BY: PAUL E. DANIELSON

CONCUR

CONCURRING [*12] OPINION.

PAUL E. DANIELSON, Associate Justice

I concur that the circuit court’s order should be affirmed, but write solely because I view the decisive issue to be whether MERS was, pursuant to Arkansas Rule of Civil Procedure 19(a) (2008), a necessary party to the foreclosure action. It can generally be said that “[n]ecessary parties to a foreclosure action are parties whose interest are inseparable such that a court would be unable to determine the rights of one party without affecting the rights of another.” 59A C.J.S. Mortgages § 708 (2008). See also 55 Am. Jur. 2d Mortgages § 647 (2008) (”[A]ll persons who are beneficially interested, either in the estate mortgaged or the demand secured, are proper or necessary parties to a suit to foreclose.”). Moreover, “[p]ersons having no interest are neither necessary nor proper parties, and the mere fact that they were parties to transactions out of which the mortgage arose does not give them such an interest as to make them necessary parties to an action to foreclose the mortgage.” Id. Indeed, our rules of civil procedure contemplate the same.

Rule 19(a) of the Arkansas Rules of Civil Procedure speaks to necessary parties:

(a) Persons to Be [*13] Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or, (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff, but refuses to do so, he may be made a defendant; or, in a proper case, an involuntary plaintiff.

Ark. R. Civ. P. 19(a) (2008).

Here, a review of the deed of trust for the subject property reveals four parties to the deed: (1) Jason Paul Lindsey and Julie Ann Lindsey, “Borrower”; (2) James C. East, “Trustee”; (3) MERS, “(solely as nominee for Lender, as hereinafter defined, and Lender’s successors and assigns)”; and (4) Pulaski Mortgage Company, “Lender.” The question, then, is whether MERS, [*14] as nominee, was a necessary party that had an interest “so situated that the disposition of the action in [its] absence may” have impaired its ability to protect its interest or left a subsequent purchaser or other subject to a substantial risk by reason of its interest. The answer is no; MERS, as nominee, was not a necessary party to the foreclosure action, because it held no such interest.

Initially, I must note that my review of the deed’s notice provision reveals that the deed clearly contemplated the Lender as the party with interest, in that it provided:

13. Notices. . . . Any notice to Lender shall be given by first class mail to Lender’s address stated herein or any address Lender designates by notice to Borrower. Any notice provided for in this Security’ Instrument shall be deemed to have been given to Borrower or Lender when given as in this paragraph.

Here, as stated in the circuit court’s order of foreclosure. Pulaski Mortgage, as Lender, was served with notice of the foreclosure action, in accord with paragraph thirteen.

But, in addition, MERS claims that because it holds legal title, it has an interest so as to render it a necessary party pursuant to Rule 19(a). Indeed, pursuant [*15] to the deed of trust, MERS held “only legal title to the interests granted” by the Lindseys,

but, if necessary to comply with law or custom, MERS, (as nominee for Lender and Lender’s successors and assigns) has the right to exercise any and all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

“Legal title” is defined as “[a] title that evidences apparent ownership but does not necessarily signify full and complete title or a beneficial interest.” Black’s Law Dictionary 1523 (8th ed. 2004) (emphasis added). Thus, as evidenced by the definition, holding legal title alone in no way demonstrates the interest required by Rule 19(a).

MERS further claims that its status as nominee is evidence of its interest in the property, making it a necessary party. However, merely serving as nominee was recently held by one court to be insufficient to demonstrate an interest rising to the level to be a necessary party. In Landmark National Bank v. Kesler, 40 Kan. App. 2d 325, 192 P.3d 177 (2008), review granted, (Feb. 11, 2009). MERS also [*16] asserted that it was a necessary party to the foreclosure suit at issue. There, the district court found that MERS was not a necessary party, and the appellate court affirmed. Just as here, MERS was a party to the mortgage “solely as nominee for Lender.” 40 Kan. App. 2d at 327, 192 P.3d at 179. Based on that status, the Kansas court found that MERS was in essence, an agent for the lender, as its right to act to enforce the mortgage was strictly limited. See id.

Agreeing with MERS that a foreclosure judgment could be set aside for failure to join a “contingently necessary party,” the Kansas court observed that a party was “contingently necessary” under K.S.A. 60-219 if “the party claims an interest in the property at issue and the party is so situated that resolution of the lawsuit without that party may ‘as a practical matter substantially impair or impede [its] ability to protect that interest.’” Id. at 328, 192 P.3d at 180 (quoting K.S.A. 60-219). Notably, the language of K.S.A. 60-219 quoted by the Kansas court is practically identical to the language of Ark. R. Civ. P. 19(a).

The Kansas appellate court noted that MERS received no funds and that the mortgage required the borrower [*17] to pay his monthly payments to the lender. See id. It also observed, just as in the case at hand, that the notice provisions of the mortgage “did not list MERS as an entity to contact upon default or foreclosure.” Id. at 330, 192 P.3d at 181. After declaring that MERS did not have a “sort of substantial rights and interests” that had been found in a prior decision and noting that “a party with no beneficial interest is outside the realm of necessary parties,” the Kansas court concluded that “the failure to name and serve MERS as a defendant in a foreclosure action in which the lender of record has been served” was not such a fatal defect that the foreclosure judgment should be set aside. Id. at 331, 192 P.3d at 181-82.

It is my opinion that the same holds true in the instant case. Here, Pulaski Mortgage, the lender for whom MERS served as nominee, was served in the foreclosure action. But, further, neither MERS’s holding of legal title, nor its status as nominee, demonstrates any interest that would have rendered it a necessary party pursuant to Ark. R. Civ. P. 19(a). For these reasons, I concur that the circuit court’s order should be affirmed.

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